July 02, 2014

What is Wilful Misconduct under the Ontario Employment Standards Act?

An employee with about 13 years of service was terminated without notice or pay in lieu of notice. The employee filed a complaint under the Employment Standards Act, 2000 (“ESA”) and the employer defended on the basis that the employee had been terminated for “willful misconduct, disobedience or neglect of duty that was not trivial and was not condoned” under the ESA and regulations.

The officer found that the employee would clock into work and immediately leave for an unauthorized break. An investigation of time records and video surveillance conducted between December 11, 2011 and January 5, 2012 revealed that on fourteen of the eighteen shifts which the employee worked, she drove her car to the employee entrance, swiped her access card, left and returned to work twenty to forty minutes after the start of her shift.

The employee suggested that “everyone did this”.

The employee was found to have been disruptive after having been warned regarding the company’s concerns. She also wrote an email which, in part, questioned management’s competence to manage. She was asked to “go home” and refused (twice) she was issued a one day suspension and, it seems, “refused to go home until one half hour prior to the end of her shift.”

This, according to the officer amounted to “willful misconduct” for purposes of the ESA The officer dismissed her complaint finding that the complainant had been guilty of “willful misconduct” under the ESA.

The employee appealed to the Ontario Labour Relations Board (the “Board”).

The Board applied the following general analysis to the appeal:

She is presumptively entitled under the Act to termination and severance pay, calculated on her length of service, unless Leon’s establishes on a balance of probabilities that she engaged in wilful misconduct, disobedience or neglect of duty that was not trivial and was not condoned by Leon’s. (See O. Reg. 288/01, section 2(1), para 3). The case law has recognized that this disentitling provision is to be narrowly construed, and that the onus of establishing that it applies rests on the employer who seeks to rely on it.

The test to be applied when considering if the conduct amounts to “wilful misconduct” was discussed in VME Equipment of Canada Ltd. [1992] O.E.S.A.D. No. 230:

There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.

In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from 'just cause', that the conduct complained of is 'wilful'. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.

The Board applied the facts to this test and dismissed the appeal. The decision is somewhat unclear about what, exactly, caused the Board to dismiss the appeal as it looks to a number of areas which, obviously, caused it concern including:

the complainant’s “repeated failure to follow the direction of management to go home on January 3, 2012”;

the sending of an “insolent and aggressive email in which she challenges management’s competence to manage” which was found to be “serious and wilful misconduct”;

Clocking in, but not getting to work but being paid. According to the Board “these absences are not breaks or lateness; they are simply time theft which amounts to wilful misconduct” and, further the “unauthorized “breaks” are wilful misconduct.”

Perhaps it was the totality of the evidence that was considered to amount to wilful misconduct or one element, it’s not clear.

What is clear is that the Board dismissed the appeal and found that the misconduct was wilful and not condoned.

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